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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 22 December 2003
NEW SOUTH WALES COURT OF APPEAL
CITATION: ERCEG v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR & VIRGIN v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR [2003] NSWCA 379
FILE NUMBER(S):
40909/03
41030/03
HEARING DATE(S): 28/11/2003
JUDGMENT DATE: 19/12/2003
PARTIES:
Leon Maurice ERCEG - Claimant
Jason Lee VIRGIN - Claimant
The District Court of New South Wales - First Opponent
Director of Public Prosecutions - Second Opponent
JUDGMENT OF: Sheller JA McColl JA Palmer J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 01/11/0630, 01/11/0628
LOWER COURT JUDICIAL OFFICER: Taylor DCJ
COUNSEL:
J Basten QC - Claimant (Erceg)
M Ramagee - Claimant (Virgin)
Submitting appearance for 1st Opponent
RD Cogswell SC / JM Levy - 2nd Opponent
SOLICITORS:
Steve O'Connor - Legal Aid - Claimant (Erceg)
Jeffreys & Associate - Claimant (Virgin)
Director of Public Prosecutions - 1st & 2nd Opponent
CATCHWORDS:
CRIMINAL LAW - Sentencing - Declaratory relief sought where ambiguity as to the length of non-parole period imposed - what constitutes the record of sentence in a s 51A matter - whether sentence contrary to law or failing to impose a penalty so as to attract the jurisdiction to reopen under s 43 of the Crimes (Sentencing Procedure) Act - whether declaratory relief appropriate in the circumstances.
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
DECISION:
1. Summons dismissed
2. Second Opponent to pay the claimants' costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40909/03; CA 41030/03
DC 01/11/0630; 01/11/0628
SHELLER JA
McCOLL JA
PALMER J
FRIDAY, 19 DECEMBER 2003
VIRGIN v DISTRICT COURT OF NEW SOUTH WALES & ANOR
FACTS
The claimants pleaded guilty in the Local Court to charges of robbery in company and were committed for sentence to the District Court pursuant to s 51A of the Justices Act 1902 (NSW). On 28 November 2001 the claimants came before Taylor DCJ for sentencing. In pronouncing the sentence, his Honour stated that each claimant was sentenced to imprisonment for four years and four months to date from 2 May 2001 and expire on 1 September 2005; comprising a head sentence of three years imprisonment and a non-parole period of one year and four months and that the claimants would be eligible for consideration for release to parole on 1 May 2004.
The forms for committal for sentence under s 51A (the "s 51A forms recorded that the claimants were sentenced to a term of imprisonment for four years and four months to date from 02/05/2001 and expire on 01/09/2005, comprising a head sentence of three years and a non-parole period of 1 year and 4 months to expire on 01/05/2004. On each form, the original entry of 01/05/2004 was changed by hand to 01/09/2002.
Following pronouncement of the sentence, a variety of warrants of commitment were issued pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999 (NSW) each of which reflected some, but not all, of what Taylor DCJ had either said in imposing the sentence or what was recorded on the s 51A forms.
On 19 December 2002, Taylor DCJ heard what purported to be an application to reopen the sentences pursuant to s 43 of the Crimes (Sentencing Procedure) Act. In a document entitled "Amended Sentence", his Honour stated it was his intention that each offender serve a custodial sentence from 1 May 2001 and be eligible for consideration for parole on 1 May 2004.
The claimants sought a declaration that pursuant to the orders of the District Court made on 28 November 2001 they were subject to a non-parole period of one year and four months which expired on 1 September 2002.
HELD per McColl JA (Palmer J agreeing):
1 In an application for declaratory relief to resolve doubt about the length of a non-parole period, the Court may have regard to the remarks made in imposing the sentence, the record of the sentence and any other relevant matters. It is not confined to the formal record made of the sentence.
2 The "record" for the purposes of a sentence imposed in a s 51A matter is the sentence recorded on the s 51A form.
R v Parker (1985) 1 NSWLR 167 referred to.
R v CJP [2003] NSWCCA 187 referred to.
3 The jurisdiction to reopen sentences pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) confers a broad power, intended, at least in part, to permit the correction of errors in the sentencing process.
R v Tangen (NSWCCA, unreported, 21 June 1996, BC9602532) cited.
R v Denning (NSWCCA, unreported, 15 May 1992, BC9203052) cited.
R v Tolmie (1994) 72 A Crim R 416 cited.
Ho v DPP (1995) 37 NSWLR 393 cited.
R v Petrou (NSWCCA, unreported, 13 February 1990, BC9002736) cited.
4 The proper interpretation of the sentence the trial judge imposed was a head sentence of four years four months and a non-parole period of three years. However, due to internal inconsistencies and discrepancies in the pronouncement of the sentences, Taylor DCJ either imposed sentences which were contrary to law or failed to impose a penalty as required by law within the meaning of s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
5 Declaratory relief is only available in criminal proceedings in exceptional cases. It ought not be granted where relief is available under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, in the circumstances of this case, where the Crown proposed to bring the matter back before Taylor DCJ to resolve the s 43 issue concerning the length of the non-parole period.
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 referred to.
Shapowloff v Dunn [1973] 2 NSWLR 468 referred to.
Cain v Glass (No 2) (1985) 3 NSWLR 230 referred to.
Dorney v Federal Commissioner of Taxation [1980] 1 NSWLR 404 referred to.
(per Sheller JA dissenting):
1 The District Court of New South Wales is a court of record. Such records, as kept by the District Court of New South Wales, are conclusive evidence of what they contain:
Lee v Mallam (1910) 27 WN (NSW) 203 applied.
Stephens (1991) 48 A CrimR 323 applied.
Carrion [2002] NSWCCA 21; (2002) 128 A CrimR 29 referred to.
2 It is taken as the practice of the District Court of New South Wales, for the sentence to be recorded on the "Committal for Sentence" form under Section 51A of the Justices Act. Such form, when signed by the judge, is to be treated as the record of sentence and the only authority for the issue of warrants of commitment to the Corrective Services Centre:
R v CJP (2003) NSWCCA 187 applied.
3 Whatever may have been the unexpressed intentions of the sentencing judge or the power of the District Court or the Criminal Court of Appeal to vary the sentence expressed in the Committal for Sentence form, that has not happened.
4 The Court should act upon the sentence recorded. The non-parole period, as expressed in the record of sentence, was a period of one year and four months, which dated from 2 May 2001 and therefore expired on 1 September 2002.
ORDERS
1 Summons dismissed
2 Second Opponent to pay the claimants' costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40909/03; CA 41030/03
DC 01/11/0630; 01/11/0628
SHELLER JA
McCOLL JA
PALMER J
FRIDAY, 19 DECEMBER 2003
VIRGIN v DISTRICT COURT OF NEW SOUTH WALES & ANOR
1 SHELLER JA:
Introduction
The claimants, Leon Maurice Erceg and Jason Lee Virgin also known as Ashley Frazer, pleaded guilty in the Local Court to charges of robbery in company and were committed for sentence to the District Court pursuant to s51A of the Justices Act 1902. On 28 November 2001 his Honour Judge Taylor sentenced each of the claimants in the following almost identical terms:
"... you are convicted. I sentence you to imprisonment for four years and four months to date from 2 May 2001 and expire on 1 September 2005; comprising a head sentence of three years imprisonment and a non-parole period of one year and four months. This non-parole period is less than three-quarters of the head sentence because of the special circumstances being [your prospects of rehabilitation and your youth] (being your rehabilitation). Accordingly, you will be eligible for consideration (for release) to parole on 1 May 2004."
2 In his remarks on sentence his Honour described the offences as objectively very serious, as indeed they were. The victim was walking along a street, at about 9.35 pm on 2 May 2001, when one of the claimants grabbed her around the neck and forced her to the ground. The claimants then dragged her along the ground and smashed the victim's head on a wall. They attempted to steal the victim's bum bag that was strapped around her neck. To do so, they lifted her off the ground and dropped her. Their efforts were thwarted by the appearance of three witnesses who chased the claimants away to a point where they were arrested by the police. The sentencing Judge referred to R v Henry & Ors(1999) 46 NSWLR 346, a guideline judgment of the Court of Criminal Appeal, and carefully weighed the objective and subjective matters to be taken into account. As the sentences indicated, his Honour found in the case of each claimant, that there were special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999.
3 Internally the sentences as pronounced in the remarks on sentence were contradictory and therefore meaningless unless read down. In particular, a non-parole period of one year and four months commencing on 2 May 2001 was inconsistent with an eligibility for parole on 1 May 2004. However, the forms of committal for sentence under s51A of the Justices Act contained the following:
"Orders on sentence:
Convicted and sentenced to a term of imprisonment for 4 years and 4 months to date from 2/5/01 and expire on 1/9/05, comprising a head sentence of 3 years with a reduction of 8 months from the head sentence due to special circumstances. I set a NPP [non parole period] of 1 year and 4 months to date from commencement of the sentence and expiring on 1/9/02. Take into account matters in Form 1."
These documents were signed by Judge Taylor. I note that in each case the date 1/9/02 had been corrected from 1/5/04.
4 The Crown did not appeal against these sentences and they have never been varied by any court. Each of the claimants, applies to the Court by a summons for a declaration that, pursuant to the orders of the first opponent, the District Court of New South Wales, made on 28 November 2001, the claimants were subject to non-parole periods of one year and four months which expired on 1 September 2002.
Warrants of Commitment
5 Warrants of commitment were issued pursued to s62 of the Crimes (Sentencing Procedure) Act. In the case of Erceg, on 28 November 2001 a warrant of commitment was signed which shows the sentence as follows:
"Sentence: 3 years commence 02/05/2001 expires 01/05/2004 [the figure four being written over what appears to be the figure three]
Non parole period 1 year & 4 months commence 02/05/2001 expire 01/09/2002.
The earliest day the offender is eligible for release is: 01/09/2002."
Across this somebody has written "amended 29/1/02".
6 On 2 January 2002 the Registrar of the District Court, Criminal Registry, wrote to the sentencing Judge as follows:
"Re: Clarification of sentence
Matter of : Leon ERCEG
Could His Honour please clarify the sentence in this matter.
The sentence warrant prepared at Sydney District Court on 28th November 2001 for the offence of Robbery in company has a head sentence of 3 years commencing on 2/5/2001 and expiring on 1/5/2004. with a non parole period of 1 year and 4 months to expire on 1/9/2002.
If the sentence warrant that I have typed needs changes, please write these changes on the warrant and amend the court result accordingly."
7 A further warrant of commitment was signed which bore at its foot "Amended on 29/1/2002 at Sydney DCCR - In lieu of sentence warrant dated 28/11/2001." The amendment changed the year date in type from 2003 to 2004 for the expiry of the sentence. The non-parole period remained unchanged as expiring on 1 September 2002. Across this warrant of commitment was written "amended 5/2/02".
8 On 31 January 2002 the Registrar wrote again to the sentencing Judge as follows:
"Re: Sentence Clarification
Matters of: Leon ERCEG & Jason Lee VIRGIN
File No's: 01/11/0630 & 01/11/0628
I refer to these two matters that were forwarded to your chambers on 2nd January 2002 for sentence clarification.
It has come to my attention the sentences for both co-accused are identical. However the warrants prepared do not reflect this. Could you please advise me which sentence is the correct one.
The court files are forwarded for His Honour's consideration."
9 A further warrant of commitment was signed which has at its foot "Amended on 5/2/2002 at Sydney DCCR - In lieu of sentence warrant dated 28/11/2001 - second amendment." This amended the sentence to three years and eight months commencing on 2 May 2001 and expiring on 1 January 2005. The non-parole period remained unchanged as expiring on 1 September 2002.
10 On 21 May 2002 the Manager, Sentence Administration Branch of the Department of Corrective Services, wrote to the Registrar, Criminal Registry, Downing Centre District Court with a heading referring to each of the claimants. The body of the letter was as follows:
"The above named inmates (co-offenders) appeared before Judge K V Taylor at the Sydney District Court on 28 November 2001 for sentence.
From the Warrants of Commitment it appears that inmate Virgin was sentenced to 4 years 4 months with a non parole period of 1 year 4 months dating from 2 May 2001. In the case of Erceg it appears he was sentenced to 3 years 8 months with a non parole period of 1 year 4 months dating from 2 May 2001 (copies attached). However, this is not reflected in Judge Taylor's remarks at the time he sentenced both offenders.
It is the contention of this Department that Judge Taylor sentenced both offenders to serve 3 years before becoming eligible for release to parole and be on parole for 1 year 4 months should they be released to parole on the earliest possible date. That is, a sentence of 4 years 4 months to dated from 2 May 2001 with a non parole period of 3 years, also to date from 2 May 2001. This contention is based on His Honour specifying 1 May 2004 as the date on which they would be eligible for consideration for parole (see pages 7 & 11 of the attached remarks on sentencing).
It is requested that new warrants be issued for each inmate as per the sentences imposed."
11 In the case of Erceg, on 1 July 2002 a further warrant of commitment was signed said to be "warrant in lieu of warrant issued 5/2/2002" which showed the sentence as four years and four months commencing on 2 May 2001 and expiring on 1 September 2005 and the non-parole period as three years commencing on 2 May 2001 and expiring on 1 May 2004. For the first time the warrant stated: "The earliest day the inmate is eligible for release is : 01/05/2004."
12 In the case of Virgin, on 28 November 2001 a warrant of commitment was signed which showed the sentence as follows:
"Sentence: 4 years 4 months commence 02/05/2001 expires 01/05/2005
Non-parole period 1 year 4 months commence 02/05/2001 expires 01/09/2002.
The earliest day the offender is eligible for release is: 01/09/2002."
13 On 5 February 2002, apparently, a further warrant of commitment was signed but this is not included in the papers. I have already referred to the letter dated 21 May 2002 from the Department of Corrective Services to the Registrar of the District Court.
14 As in the case of Erceg, on 1 July 2002, a further warrant of commitment was signed which showed the sentence as four years and four months commencing on 2 May 2001 and expiring on 1 September 2005 and the non-parole period as three years commencing on 2 May 2001 and expiring on 1 May 2004.
Application under s43
15 On 19 December 2002, Judge Taylor heard what purported to be an application pursuant to s43 of the Crimes (Sentencing Procedure) Act. His Honour gave reasons in which he said "It seems to me that there is no ambiguity in the sentence itself." He had taken as his starting point a sentence of five years reduced by eight months because of the plea of guilty, which left him with a sentence of four years and four months. "My intention was that each offender serve a custodial sentence from 2 May 2001 to be eligible for release to parole on 1 May 2004." His Honour then withdrew his statement that his remarks on sentence were not ambiguous and said:
"The expression of a non-parole period of one year and four months was incorrect. There are three reasons for this. There is the date that is expressed in the reasons, there is the use of the expression eligibility for parole but importantly having read the remarks on sentence again and bringing back to mind as best I can the case, that a three year non-parole period was appropriate.
What seems to have happened then was that the Associate in noting the term of the sentence took the eight months' period from the derived sentence and used the words `with the reduction of eight months' from the head sentence due to special circumstances. Unfortunately I did not pick up that error and it has been repeated in subsequent documentation."
16 His Honour made no order.
Appeal to the Court of Criminal Appeal
17 An appeal to the Court of Criminal Appeal by Virgin was withdrawn on 1 October 2003. As I understand it, an appeal to the same court by Erceg has been stood over awaiting the outcome of this application. It is to be noted that one reason that Virgin's appeal was withdrawn was that the Crown conceded in the Court of Criminal Appeal that s43 of the Crimes (Sentencing Procedure) Act did not permit the District Court to clarify its sentence. Greg James J, who sat in the Court of Criminal Appeal with the Chief Justice and Hulme J said to the Crown Prosecutor, Mr Ingram:
"That means there was left in the record of the District Court a record of the sentence and non parole period passed by his Honour, and that seems to be the section 51A document in which somebody had deleted 1.5.04 and inserted 1.9.02 initialled in the margin over the word `judge'.
INGRAM: It seems that is the case.
GREG JAMES J: I thought you put to me that was not the non parole period his Honour passed. We have the record of the court, which has not been changed. We have his Honour saying what his intention was. He does not seem to have ever taken any step to convert that intention in any way into reality such as to change that which had occurred as he had expressed on the day in the presence of the accused and as noted in the section 51A papers?
SPIGELMAN CJ: And there is no Crown appeal?
INGRAM: I am aware there is no Crown appeal."
Discussion
18 The applications to this Court are for declarations about the non-parole period the sentencing Judge fixed. Section 48(1) of the Crimes (Sentencing Procedure) Act requires a court on sentencing an offender to imprisonment for an offence to specify:
"(a) The day on which the sentence commences or is taken to have commenced, and
(b) the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole ..."
19 The jurisdiction the claimants invoke is that of the Court of Appeal found in s48(2) of the Supreme Court Act 1970, namely proceedings
"(e) for determining, by declaration or otherwise, any matter concerning the powers of the specified tribunal."
A specified tribunal including pursuant to s48(1):
(iv) the District Court or a judge of the District Court".
20 This Court is not sitting as a Court of Criminal Appeal hearing an appeal from the sentence. Nor is this Court, in these matters, vested with jurisdiction under s43 of the Crimes (Sentencing Procedure) Act. The Crown relied upon Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29 where the Court of Criminal Appeal held it had power, certainly before a formal record had been made of its orders, to vary them so as to give effect to the court's true intentions. But this Court has no power, nor is it asked to vary the sentence imposed by Judge Taylor. It is unnecessary to express any view about the scope of s43 of the Crimes (Sentencing Procedure) Act beyond referring to the unanimous decision of this Court in Hoe v The Director of Public Prosecutions (1995) 37 NSWLR 393, particularly at 403, and to note that, pursuant to s43, the District Court, if it thought a case was made out, in fact and law, might have re-opened the proceedings and might have imposed a penalty that was in accordance with the law and, if necessary, might have amended any relevant conviction or order. The critical factor is that the District Court made no order under s43.
21 The District Court of New South Wales is a court of record; s8(2) of the District Court Act 1973. Whatever may technically be the limits upon the need for the court to keep records, there seems no doubt that such records as it does keep are conclusive evidence of what they contain; Lee v Mallam (1910) 27 WN (NSW) 203 at 204-5. Section 157 of the Evidence Act 1995 provides that evidence of a public document, that is a judgment, Act or other process of an Australian court that purports to be signed by a judge of that court, may be adduced by producing a copy.
22 In a judgment in Stephens (1991) 48 A CrimR 323, Allen J, with whom the other members of the Court of Criminal Appeal agreed, said at 327:
"What, however, constitutes the record of the District Court in relation to trials upon indictment? By long practice the record is the indictment itself. It is upon the indictment that the orders are noted. That long practice is recognised by Pt 52 r12 of the District Court Rules 1973 (NSW) which provides:
`(12) Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgment, order, sentence, direction or recommendation.'
[see now Part 53 rule 12 of the District Court Rules 1973]
The `Judge' so referred to is the judge of the District Court. Nevertheless the rule recognises the practice of the noting of judicial orders on the indictment. The indictment is the `record' of the proceedings: Billington (1980) VR 625; Cross [1973] QB 937; (1973) 57 Cr App R 660. The particulars have not been entered upon the indictment in the present case. The orders made on 19 December 1989 have not passed into record. The court retains the power to set them aside: Billington; Cross."
This passage was, in substance, quoted in Carrion at 38, where the Chief Judge at Common Law said that he saw no reason to adopt any different view.
23 For present purposes, since the contrary has not been suggested, I take it as the practice, adopted in this case, for the sentence to be recorded on the "Committal for Sentence" form under s51A of the Justices Act and as such, when signed by the judge, the record of the sentence; see R v CJP (2003) NSWCCA 187 where the Court treated the endorsement on the committal for sentence form as the record of sentence in the District Court. In the form the record there took, there was no inconsistency or ambiguity about the non-parole period which was stated as one year and four months expiring on 1 September 2002. This was the only authority for the issue of the warrants of commitment to the Corrective Services Centre. Whatever may have been the unexpressed intentions of the sentencing Judge or the power of the District Court or the Court of Criminal Appeal to vary the sentence so expressed, that has not happened. Indeed, the Crown's response to the claimants' applications was that the Court should dismiss them so that the Crown could now make some application to vary the sentence. The Crown has been inexcusably supine about what has happened to date. The only record in the District Court of the non-parole period is that which I have stated. Moreover, the specification of the non-parole period was made in accordance with s48 of the Crimes (Sentencing Procedure) Act.
24 As has already been made apparent there are very unsatisfactory features of the sentencing procedure in these cases. Not least of these, both claimants remain in custody and have not been treated as eligible for parole on or since 1 September 2002. The sentences, as pronounced in the remarks on sentence of 28 November 2001, because of internal inconsistency were unintelligible and either should have been corrected in the presence of the accused immediately or should have been the subject of appeals by the Crown to the Court of Criminal Appeal. It was not possible, from what his Honour said, to determine whether the head sentence was four years and four months or three years imprisonment. There is, on the face of the remarks on sentence, less doubt about the non-parole period which is clearly stated as being a period of one year and four months. That is certainly less than three-quarters of the head sentence but is quite inconsistent with the statement that the claimants would be eligible for consideration for release to parole on 1 May 2004.
25 However that may be, the sentencing Judge signed a document which showed that the non-parole period expired on 1 September 2002. If this was corrected after the Judge had signed the document and without the Judge's authority, whoever made the correction did so improperly. The warrants of commitment dated 28 November 2001 as corrected made the situation plain in relation to the non-parole period, though doubt remains about the head sentence. These were confirmed by the warrants of commitment of 29 January 2002. On what authority the warrants of commitment of 5 February 2002 and 1 July 2002 were made is unknown and should be investigated. In my opinion, it is improper and dangerous to the administration of justice, for such warrants to be signed, in the situation that pertained in this case. Australia has not adopted an executive function permitted to the King of France before the Revolution of issuing lettres de cachet. At best, what has happened, discloses a high degree of carelessness and indifference to the rights of people not to be imprisoned otherwise than in accordance with the terms of a sentence duly and properly pronounced in court.
26 This Court is asked to declare what non-parole period was fixed by the sentencing Judge. In my opinion, in approaching a sentence which should never have been pronounced in court in the terms that it was, and if so pronounced, should have been immediately withdrawn, the Court should act upon the sentence recorded. So far as it is clear at all, the non-parole period was a period of one year and four months which dated from 2 May 2001 and therefore expired on 1 September 2002.
27 The Court should make the following declaration:
1. A declaration that, pursuant to the order of the first opponent made on 28 November 2001, the claimants were subject to a non-parole period of 1 year and 4 months which expired on 1 September 2002.
2. The second opponent, the Director of Public Prosecutions, should pay the claimants' costs of the application.
Conclusion
28 These cases should be referred to the second opponent, the Director of Public Prosecutions, for investigation. A report detailing the findings should be provided to this Court. I would hope that steps can be taken to ensure that such bungles are not repeated.
29 Since preparing these reasons for judgment I have had the opportunity to read the reasons for judgment of McColl JA and of Palmer J. I reiterate that in these proceedings, the Court of Appeal is not hearing an appeal from the District Court. I deliberately refrain from expressing any view about the prospects of any further application to the District Court under s43 of the Crime (Sentencing Procedure) Act. The non-parole period recorded, and never amended, by the District Court expired on 1 September 2002. Sadly, the claimants remain none the wiser as to whether since that date they have been wrongfully denied parole.
30 McCOLL JA: The claimants seek declaratory relief in circumstances where doubt has arisen about the length of the non-parole period imposed upon them by Taylor DCJ on 28 November 2001 in respect of the offence of robbery in company in contravention of s 97(1) of the Crimes Act 1914 as amended (NSW).
31 The claimants originally each sought:
"1. A declaration that the warrant of commitment to the Correctional Centre issued by the defendant on 28 November 2001 is valid and effective.
2. A declaration that, pursuant to the terms of that warrant, the plaintiff [claimant] was eligible for release on parole on 1 September 2002."
32 Mr Erceg also sought:
"A declaration that the warrant purportedly issued by the defendant on 1 July 2002 is null and void and is of no effect."
33 The relief is sought respectively against the District Court of New South Wales as the first opponent and the Director of Public Prosecutions as the second opponent. I assume the reference to the "defendant" is intended to be a reference to the District Court of New South Wales which was responsible for issuing the warrants of commitment: s 62 Crimes (Sentencing Procedure) Act 1999 (NSW).
34 In his written submissions, Mr Basten QC, counsel for Mr Erceg, submitted that given the doubts about the validity of the warrant issued by the District Court of New South Wales on 28 November 2001, the claimant sought the following declaration:
"A declaration, that pursuant to the order of the First Opponent made on 28 November 2001, the Claimant was subject to a non-parole period of 1 year and 4 months which expired on 1 September 2002."
35 It is not clear that Mr Ramage QC embraced Mr Basten QC's re-formulated declaration. I shall consider the matter on the basis that Mr Virgin seeks both the relief in the summons filed on his behalf as well as a declarations in the terms of that sought by Mr Erceg.
36 The District Court of New South Wales appeared and submitted to the orders of the Court save as to costs.
Statement of the Case
37 On 28 November 2001 the claimants came before Taylor DCJ for sentence after having pleaded guilty before a magistrate to the offence of robbery in company in contravention of s 97(1) of the Crimes Act 1914 as amended (NSW). That offence carried a maximum penalty of twenty years imprisonment. The magistrate committed the claimants for sentence to the District Court pursuant to s 51A of the Justices Act 1902 (NSW).
38 As Sheller JA's judgment makes clear, the circumstances of the offences were very serious.
39 In sentencing each claimant, subject to one minor exception relating to special circumstances in relation to the fixing of the non-parole period, Taylor DCJ made substantially identical remarks in the following terms:
"...balancing the objective seriousness of the offences and the mitigating circumstances a sentence of full-time custody must be imposed. There are special circumstances. The offender requires special help to overcome drug and alcohol addiction. His attempts to rehabilitate himself justify this. I find that there are special circumstances in this case that require me to adjust the relationship between the non-parole period and the term as governed by s 44 of the Crimes (Sentencing Procedure) Act. In my opinion for the plea of guilty the offender will be given a reduction of eight months from the head sentence. In my opinion a sentence of five years for this very serious offence was appropriate. I will now proceed to sentence."
Mr [Virgin/Erceg] you are convicted. I sentence you to imprisonment for four years and four months to date from 2 May 2001 and expire on 1 September 2005; comprising a head sentence of three years imprisonment and a non-parole period of one year and four months. This non-parole period is less than three-quarters of the head sentence because of the special circumstances that exist, being your rehabilitation [and your youth]. Accordingly you are eligible for consideration [for release] to parole on 1 May 2004. The sentence of course has been backdated to the time that you first entered custody."
40 After the sentence was pronounced, attempts were made to record it on the documents to which I now turn.
Committal for Sentence Documents
41 The claimants tendered two documents, entitled "Committal for sentence under section 51A of the Justices Act for" (the "s 51A form"). On the s 51A form relating to Mr Erceg the hand-written words "robbery in company" appeared after the printed word "for" in the title and the following words, again hand-written, originally appeared:
Orders on Sentence
Convicted & sentenced to a term of imprisonment for four years and four months to date from 02/05/2001 & expire on 01/09/2005 comprising a head sentence of three years with a reduction of eight months from the head sentence due to special circumstances. I set a NPP of 1 year & 4 months to date from commencement of the sentence & expiring on 01/05/2004. Take into account matters in Form 1.
42 The date "01/05/2004" has been overwritten, again in hand, by the date "01/09/2002".
43 A virtually identical s 51A form was completed in relation to Mr Virgin save that the hand-written alteration of the expiration of the non-parole period can more clearly be seen in that it appears next to the original entry of "01/05/2004" as "01/09/2002". The numeral "9" on the alteration on the s 51 form relating to Mr Erceg is a different "9" to that which appears on Mr Virgin's s 51A form.
44 Both s 51A forms appear to have been signed in proximity to the printed word "judge" by Taylor DCJ. The alterations are not initialled. There is a marginal mark on Mr Virgin's s 51A form which, at first blush, appears to be an initial, but an examination of that document (and Mr Erceg's s 51A form which, with the exception of the altered date, is in the same hand-writing) reveals the mark to be the author's symbol for the word "and".
Warrants of Commitment
45 Section 62 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:
62 Warrant of commitment
(1) As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre.
(2) The warrant must be in or to the effect of the form prescribed by the regulations and signed by an authorised officer.
(3) A warrant under this section is sufficient authority:
(a) for any police officer to convey the offender to the correctional centre or police station identified in the warrant, and
(b) for the governor of the correctional centre, or the person in charge of the police station, to keep the offender in his or her custody for the term of the sentence.
46 Clause 8 of the Crimes (Sentencing Procedure) Regulation 2000 provides that for the purposes of s 62(2) of the Sentencing (Criminal Procedure) Act, the prescribed form for a warrant of commitment to imprisonment in the Correctional Centre where that imprisonment is to be served by way of full-time detention is Form 4.
47 Form 4 provides for the warrant of commitment to set out the identification of the offence and the date upon which the offender's imprisonment is to commence and for the document to be signed by a Justice of the Peace.
48 One of the matters about which the claimants complain is that following the pronouncement of the sentence, a variety of warrants of commitment were issued in respect of each claimant, each purportedly signed by a Justice of the Peace. The claimants submit that there was only one valid warrant of commitment issued, the first one. They also say that, once issued, a warrant of commitment cannot be amended.
49 The first warrant of commitment dated 28 November 2001 (the "First Erceg Warrant") relevantly stated in relation to Mr Erceg:
Sentence details
Offences, dates of offences & counts: Robbery in company [2/5/01] **Matters on form 1 taken into account
Sentence: 3 years
Commence: 02/05/2001
Expires: 01/05/2003
Non-parole period: 1 year & 4 months
Commence: 02/05/2001
Expires: 01/09/2002
The earliest day the offender is eligible for release is 01/09/2002
The Court recommends: The non-parole period is less than three-quarters of the head sentence due to special circumstances referred to in his Honour's remarks on sentence. Sentence reduced by 8 months due to special circumstances.
50 The expiry date of the sentence had been amended in hand to record the year as "2004" instead of "2003".
51 On 2 January 2002 the Registrar of the District Court, Criminal Registry, wrote to the sentencing Judge as follows:
"Re: Clarification of sentence
Matter of: Leon ERCEG
Could His Honour please clarify the sentence in this matter.
The sentence warrant prepared at Sydney District Court on 28th November 2001 for the offence of Robbery in company has a head sentence of 3 years commencing on 2/5/2001 and expiring on 1/5/2004 with a non parole period of 1 year and 4 months to expire on 1/9/2002.
If the sentence warrant that I have typed needs changes, please write these changes on the warrant and amend the court result accordingly."
52 The First Erceg Warrant has been scored through diagonally and the words "amended 29/01/02" written between the diagonal lines.
53 In the case of Mr Virgin, the first warrant of commitment (the "First Virgin Warrant") relevantly stated:
Sentence details
Offences, dates of offences & counts: Assault with intention to rob whilst in company [2/5/01] x 1 form one taken into account"
Sentence: 4 years 4 months
Commence: 02/05/2001
Expires: 01/09/2005
Non-parole period: 1 year 4 months
Commence: 02/05/2001
Expires: 01/09/2002
The earliest day the offender is eligible for release is 01/09/2002
The Court recommends: The non-parole period is less than three-quarters of the full term of the head sentence due to special circumstances given in his Honour's remarks on sentence.
54 The second s 62 warrant of commitment in relation to Mr Erceg was identical to the first, save that the hand-written amendment to the expiry date had been replaced by the typewritten year "2004". The words "amended on 29/01/2002 at Sydney DCCR - in lieu of sentence warrant dated 28/11/2001" were also typed on it.
55 On 31 January 2002 the Registrar wrote again to the sentencing Judge as follows:
"Re: Sentence Clarification
Matters of: Leon ERCEG & Jason Lee VIRGIN
File No's: 01/11/0630 & 01/11/0628
I refer to these two matters that were forwarded to your chambers on 2nd January 2002 for sentence clarification.
It has come to my attention the sentences for both co-accused are identical. However the warrants prepared do not reflect this. Could you please advise me which sentence is the correct one.
The court files are forwarded for His Honour's consideration."
56 On 5 February 2002 a third s 62 warrant of commitment was issued in relation to Mr Erceg (the "Third Erceg Warrant"). On this occasion the sentence was recorded in the following manner:
Sentence: 4 years & 8 months
Commence: 02/05/2001
Expires: 01/01/2005
Non-parole period: 1 year & 4 months
Commence: 02/05/2001
Expires: 01/09/2002
The earliest day the offender is eligible for release is 01/09/2002
The Court recommends: The non-parole period is less than three-quarters of the head sentence due to special circumstances referred to in his Honour's remarks on sentence. Sentence reduced by 8 months due to special circumstances.
57 The words "amended on 05/02/2002 at Sydney DCCR - in lieu of Sentence Warrant dated 28/11/2001 - second amendment" were added.
58 The sentence recorded on the Third Erceg Warrant was incorrect. Its term was recorded as "four years eight months" as opposed to the "four years four months" Taylor DCJ had imposed and it was recorded as expiring on "1 January 2005" as opposed to "1 September 2005" as his Honour had stated.
59 On 21 May 2002 the Manager, Sentence Administration Branch of the Department of Corrective Services, wrote to the Registrar, Criminal Registry, Downing Centre District Court with a heading referring to each of the claimants. The body of the letter stated:
"The above named inmates (co-offenders) appeared before Judge K V Taylor at the Sydney District Court on 28 November 2001 for sentence.
From the Warrants of Commitment it appears that inmate Virgin was sentenced to 4 years 4 months with a non parole period of 1 year 4 months dating from 2 May 2001. In the case of Erceg it appears he was sentenced to 3 years 8 months with a non parole period of 1 year 4 months dating from 2 May 2001 (copies attached). However, this is not reflected in Judge Taylor's remarks at the time he sentenced both offenders.
It is the contention of this Department that Judge Taylor sentenced both offenders to serve 3 years before becoming eligible for release to parole and be on parole for 1 year 4 months should they be released to parole on the earliest possible date. That is, a sentence of 4 years 4 months to date from 2 May 2001 with a non parole period of 3 years, also to date from 2 May 2001. This contention is based on His Honour specifying 1 May 2004 as the date on which they would be eligible for consideration for parole (see pages 7 & 11 of the attached remarks on sentencing).
It is requested that new warrants be issued for each inmate as per the sentences imposed."
60 On 1 July 2002 the fourth warrant of commitment was issued in relation to Mr Erceg and another warrant of commitment was issued by the District Court in relation to Mr Virgin (the "Final Warrants"). On this occasion both documents recorded:
Sentence: Four years & four months
Commence: 02/05/2001
Expires: 01/09/2005
Non-parole period: Three years
Commence: 02/05/2001
Expires: 01/05/2004
The earliest day the inmate is eligible for release is: 01/05/2004.
The Court recommends: The non parole period is less than three quarters of the head sentence due to special circumstances referred to in his Honour's remarks on sentence.
Dated: 1 July 2002 at: Sydney - warrant in lieu of warrant issued 05/02/2002.
61 It appears probable, having regard to the last line of the final s 62 warrant in relation to Mr Virgin, "warrant in lieu of warrant issued 05/02/2002", that an amendment was made to the First Virgin Warrant on 5 February 2002. That document was not, however, in evidence. Nothing turns on the point.
62 This analysis of the warrants of commitment reveals that none of them accurately recorded the remarks on sentence statements or the s 51A forms. Hardly surprisingly, none recorded the two head sentences Taylor DCJ had apparently imposed, both of which appeared on the s 51A forms, or the two non-parole periods.
63 It might also be noted that the documents used as s 62 warrants of commitment are not in the form prescribed by cl 8 of the Crimes (Sentencing Procedure) Regulation 2000. Counsel advised the Court they could not identify the source of the form which was used. While the form does contain the matters prescribed in form 4, it also contains much additional information. Nothing in the prescribed form, for example, required the insertion of the details of the non-parole period or the details of the earliest day upon which the offender was eligible for release or anything in relation to any remarks made on sentence.
The Second Hearing
64 On 19 December 2002 the matter came back before Taylor DCJ at the claimants' instigation: see letter from the Legal Aid Commission to the Office of the Director or Public Prosecutions advising that the matters of Erceg and Virgin had been listed before Taylor DCJ "pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999", annexed to Ms Perry's affidavit. It does not appear the claimants filed a motion to reopen the proceedings as required by Part 53 r 10A of the District Court Rules 1973. No such document was in the papers considered by this Court.
65 After submissions were made by counsel for the Crown and each claimant, the transcript records "For sentence - see separate transcript." Taylor DCJ then made a statement recorded in a document entitled "Amended Sentence." He characterised the exercise he was asked to undertake as being "to clarify an ambiguity that has appeared from the remarks on sentence imposed with respect to Mr Ashley and Mr Erceg on 28 November 2001". The reference to "Mr Ashley" is clearly intended to be a reference to Mr Virgin who appears to have adopted the alias "Ashley Fraser" at some stage.
66 After referring to the reduction of the original five year sentence by eight months because of the plea of guilty, Taylor DCJ said:
"Having gone through that exercise I was left with a sentence of four years and four months. My intention was that each offender serve a custodial sentence from 2 May 2001 to be eligible for release to parole on 1 May 2004.
...The expression of a non-parole period of one year and four months was incorrect...."
67 Despite the references to "amended sentence" and Taylor DCJ's clear statement that he had intended to impose a non-parole period of three years, no steps were taken to record that intention formally.
68 In this respect it is relevant to note that Mr Erceg's solicitor who was responsible for the proceedings being placed before Taylor DCJ on the second occasion, swore an affidavit in support of Mr Erceg's claim for relief in this Court in which she stated:
"On [19 December 2002 Judge Taylor] treated the imposition of the non-parole period of 1 year 4 months as an error and sought to impose a 3 year non-parole period."
69 Nothing in the evidence demonstrates why, if that was her understanding at the conclusion of the second hearing before Taylor DCJ, no formal step was taken to correct the record of the claimants' sentences.
Proceedings in the Court of Criminal Appeal
70 Both Mr Erceg and Mr Virgin sought leave to appeal against their sentences: s 5(1)(c) Criminal Appeal Act 1912 (NSW). Both applications appear to have been lodged after the second hearing.
71 Mr Erceg's sentence appeal came before the Court of Criminal Appeal constituted by Bruce James J and Smart A-J on 28 May 2003. The Court reserved its decision pending the outcome of Mr Virgin's appeal.
72 Mr Virgin's sentence appeal came before the Court of Criminal Appeal constituted by Spigelman CJ, Hulme and Greg James JJ on 1 October 2003. The principal matter traversed was identifying the sentence Mr Virgin sought to challenge.
73 The Crown submitted that Taylor DCJ had imposed a three year non-parole period. The Crown contended that the sentence was that which was first recorded on the s 51A form, that is prior to the alteration of the expiry date of the non-parole period from "1 May 2004" to "1 September 2002".
74 Spigelman CJ pointed out to Mr Ramage QC, who appeared for Mr Virgin, that if Taylor DCJ's order stood as amended on the s 51A form and the non-parole period was one year and four months, his client was entitled to be considered for parole. Mr Ramage QC then obtained instructions to abandon the appeal. He sought to gain some assurance from the Court that that abandonment was "on the basis this Court has confirmed the sentence he is serving is a non-parole period of one year and four months". Spigelman CJ observed: "the record of the Court will speak for itself."
75 After Mr Virgin abandoned his appeal, Mr Erceg's solicitor wrote to the Registrar of the Court of Criminal Appeal advising the result of Mr Virgin's appeal and asking that judgment in Mr Erceg's appeal not be delivered while Mr Erceg's legal representatives considered the position. On 15 October 2003 the Summons initiating the present proceedings was filed on behalf of Mr Erceg. Mr Virgin's summons seeking substantially the same relief was filed on 18 November 2003.
Submissions on Behalf of the Claimants
76 The claimants submitted that the focus of the application was to identify the non-parole period specified by the sentencing judge on 28 November 2001.
77 The claimants submitted the court could only have regard to the s 51A forms to determine their applications. They submitted that the s 51A form constituted the perfected record which, subject to s 43, could only be varied on appeal. They submitted that the circumstances of the sentencing did not attract the power to reopen under s 43 of the Crimes (Sentencing Procedure) Act 1999 or at common law: cf R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29. Mr Basten QC submitted that the Crown had correctly conceded in the course of Mr Virgin's sentence appeal that an application under s 43 was misconceived.
78 In his written submissions, Mr Basten QC acknowledged that the pronouncement of the head sentence was ambiguous. He contended that the specification of the non-parole period was not ambiguous, although he acknowledged that Taylor DCJ's identification of 1 May 2004 as the date upon which the claimants would be eligible for release was consistent with the non-parole period being three years, dating from 1 May 2001.
79 Mr Basten QC submitted that on the assumption the alteration to the s 51A form was made by the judge or was made prior to the judge signing the order, there was no ambiguity in the way the sentence was recorded. He submitted that the presumption of regularity supported that conclusion and that, on that basis, the sentence imposed on Mr Erceg was an aggregate term of imprisonment of four years and four months and a non-parole period of one year and four months.
80 He submitted that the words "comprising a head sentence of three years with a reduction of eight months from the head sentence due to special circumstances" could have been left out of the recording of the orders on the s 51A form without there being any variation of the meaning and that they did not need to be part of the order.
81 He also submitted that the Crown's argument that the sentence was ambiguous rested on an ambiguity in the remarks on sentence, which refer both to a non-parole period of one year and four months and give a date for eligibility for consideration for parole as "1 May 2004". He submitted that to the extent that the sentence pronounced in court in the presence of the accused was ambiguous, the ambiguity was resolved in the documentary record in a manner favourable to the accused. In any event, he submitted, it was axiomatic that the orders of the Court were found in the formal record of the Court and not in the transcript of reasons.
82 Mr Basten QC submitted that it was ingenuous of the Crown to come before the Court and "concede the inappropriateness of the conduct of officers of the Crown in the past; acknowledge that such conduct calls for investigation and enquiry, whilst none has been made; seek to resile from the position it put one month ago before the Court of Criminal Appeal; suggested there is still an application on foot before the trial judge, which was not brought by it and which on one view has been disposed of, and seek to assert that it will now take the positive step of seeking a variation of the sentence record, for the first time, two years after the sentence was imposed and almost eighteen months after the non-parole period formerly recorded in the sentence had expired."
83 He submitted that to entertain a discretionary refusal of relief in those circumstances would be seen by the claimant as "judicial condonation of the inaction and apparent maladministration by a variety of officers in the employ of the Crown over a lengthy period, coupled with a further chance to invoke a doubtful power which by delay, if not Court order, will achieve a goal not justified by the Court record."
84 As to the warrants of commitment, Mr Basten QC submitted that the warrant, in each of its manifestations, was deficient in that it failed to identify a place where the claimant was to be held and was directed to no identifiable person. He submitted that one consequence of those deficiencies was that the warrant should be disregarded for present purposes and that the imprisonment must depend for its validity only on the order of the Court.
85 It was also submitted on behalf of Mr Erceg that even if the s 62 warrant was valid, s 62 contains no power to amend, vary or reissue a warrant from time to time.
Submissions of the Director of Public Prosecutions
86 The Crown Advocate, who appeared for the Director of Public Prosecutions, submitted that Taylor DCJ had expressed the claimants' sentences in a confusing and ambiguous manner.
87 Nevertheless, he submitted that Taylor DCJ had intended to sentence each claimant to four years and four months imprisonment with a non-parole period of three years. He submitted that the non-parole period could be understood by reference to Taylor DCJ's reference to "three years" (36 months). As the total sentence was 52 months, three quarters of which was 39 months, he submitted the trial judge had allowed each claimant three months on account of special circumstances: s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW). This was consistent with Taylor DCJ stating that the claimants were eligible for release to parole on 1 May 2004, bearing in mind that the sentence commenced on 1 May 2001.
88 The Crown Advocate pointed out that if the non-parole period was one year and four months i.e. 16 months, as the claimants contended, then the non-parole period would be just over 30 per cent of the total sentence which would be very unusual.
89 The Crown Advocate submitted that the confusion in Taylor DCJ's original remarks on sentence continued in the s 51A forms. He submitted that both were "internally inconsistent". He submitted that Taylor DCJ had now clarified his intention on sentence in the Amended Sentence.
90 The Crown Advocate submitted that it was open to Taylor DCJ to vary his original order as it did not reflect his intention. He submitted that the sentence was contrary to law (s 43(1)(a)) because, taken literally, Taylor DCJ had effectively imposed two head sentences and two non-parole periods.
91 The Crown Advocate submitted in his written oultine that the matter should be remitted to Taylor DCJ to complete the application under s 43 of the Crimes (Sentencing Procedure) Act 1999. In the course of argument, the Crown Advocate withdrew that submission but submitted the Court should dismiss the summons. He submitted that granting the claimants the relief sought would "clearly frustrate the now clearly expressed intention of the learned sentencing judge who was sentencing them for `very serious' offences."
92 The Crown Advocate submitted it was not appropriate for this Court to grant declaratory relief in circumstances where a procedure was available pursuant to which Taylor DCJ could correct the sentences he had imposed. He submitted the Court should exercise its discretion to refuse declaratory relief because, however the sentencing judge's remarks on 28 November 2001 or the s 51A forms were construed, his Honour had made it clear in the Amended Sentence that his original intention was that the non-parole period was three years.
93 He submitted that Taylor DCJ ought to be given the opportunity to correct the order to accord with his original intentions after having heard the parties. As I understand the Crown Advocate's submissions, if this Court dismisses the summons, the Director of Public Prosecutions will bring the matter before Taylor DCJ promptly, to be dealt with by his Honour either pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 or in reliance upon the implied power to vary an order which did not reflect the words spoken or the intention of the judge when passing sentence.
Statutory Background
94 At the time Taylor DCJ sentenced the claimants, the following provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied.
95 Section 44 dealt with setting the term of the sentence and the non-parole period and provided:
44 (1) When sentencing an offender to imprisonment for an offence, a court is required:
(a) firstly, to set the term of the sentence, and
(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.
(5) Schedule 1 has effect in relation to the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.
96 The commencement of the term of the sentence was dealt with in s 47, relevantly:
47 Commencement of sentence
(1) A sentence of imprisonment commences:
(a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, ...
(2) A court may direct that a sentence of imprisonment:
(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, ...
97 Section 48 obliged the court imposing the sentence to specify the release date. It provided:
48 Information about release date
(1) When sentencing an offender to imprisonment for an offence, a court must specify:
(a) the day on which the sentence commences or is taken to have commenced, and
(b) the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole, having regard to:
(i) that and any other sentence of imprisonment to which the offender is subject, and
(ii) the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject.
(2) The purpose of this section is to require a court to give information about the likely effect of a sentence.
(3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence.
98 Section 50 made specific provision in relation to a non-parole period where a sentence of three years or less was imposed. It provided:
50 Making of parole orders by court
(1) When a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period.
(2) A parole order may be made under this section even though at the time it is made it appears that the offender may not be eligible for release at the end of the non-parole period because of some other sentence to which the offender is subject.
(3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence.
Reopening a Sentence
99 In order to understand the courses available to resolve the applications, it is essential to understand the circumstances in which s 43 Crimes (Sentencing Procedure) Act 1999 can be applied. That section provides:-
43 Court may reopen proceedings to correct sentencing errors
(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:
(a) imposed a penalty that is contrary to law, or
(b) failed to impose a penalty that is required to be imposed by law,
and so applies whether or not a person has been convicted of an offence in those proceedings.
(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:
(a) may impose a penalty that is in accordance with the law, and
(b) if necessary, may amend any relevant conviction or order.
(3) For the purposes of this section, the court:
(a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or
(b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest.
(4) Subject to subsection (5), nothing in this section affects any right of appeal.
(5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.
(6) In this section:
"impose a penalty" includes:
(a) impose a sentence of imprisonment or a fine...
100 Section 43 substantially re-enacted s 24 of the Criminal Procedure Act 1986 (formerly s 19 of that Act: see the Statute Law (Miscellaneous Provisions) Act 1989 (NSW).
101 Section 24 of the Criminal Procedure Act was substantially on all fours with s 43, save that it provided specifically that the Court "whether or not differently constituted might reopen the proceedings": section 24(1).
102 In R v Tangen (NSWCCA, unreported, 21 June 1996, BC9602532 at 5) Badgery-Parker J (with whom Gleeson CJ and Hidden J agreed), said of s 24 of the Criminal Procedure Act 1986:
"Whatever else s24 was intended to do, it was intended to enable the correction of errors in the sentencing process (which is a highly technical process, not in the determination of the appropriate level of sentence, which is very much an intuitive process, but in the formal expression of the results of that determination), a process in which error is apt to occur. The clear intention of the enactment of s24 is to permit the correction of error without the necessity of an appeal: see per Hunt CJ at CL. in Tolmie (1994) 72 A Crim R 416 at 420...generally speaking... s24 ought to be understood as requiring the court to re-open the sentencing proceedings once error is demonstrated, unless there are reasons which should lead to a conclusion that, in the particular circumstances of a particular case, it would be unjust so to do."
103 Where the court exercises its discretion to reopen, it is authorised to amend the sentence, and if necessary to re-sentence entirely, in order to produce the result which the sentencing judge originally intended to be achieved by the sentence originally, but invalidly, imposed: R v Tangen (BC9602532 at 10); R v Denning (NSWCCA per Grove J, unreported, 15 May 1992, BC9203052 at 13).
104 The statutory power to reopen is a remedial/beneficial provision which should be construed broadly: R v Tolmie (1994) 72 A Crim R 416 at 420 per Hunt CJ at CL; per Smart J at 421. It should not be given a narrow construction - "For the correction of arguable mistakes in sentencing, the section should be given the widest possible operation": Ho v DPP (1995) 37 NSWLR 393 at 398, 403 per Kirby P, with whom Gleeson CJ and Sheller JA agreed. It is intended to be available to permit the judge who made the original error to correct it, without the affected party having either to appeal or to rely upon some administrative action being taken to ensure that the proper penalty is imposed: R v Petrou (NSWCCA, unreported, 13 February 1990, BC9002736, Hunt, Finlay and Allen JJ) per Finlay J. It is intended to avoid unnecessary appeals and to permit the expeditious correction of sentencing errors: R v Denning (NSWCCA per Carruthers J, BC9203052 at 7); it is "for the benefit of the individual affected and the community at large": R v Denning (NSWCCA per Smart J, BC9203052 at 11); it should be construed to include scope for the fullest relief which fairly can be comprehended within the concept of correction: R v Denning (NSWCCA per Grove J, BC9203052 at 13); approved in R v Tangen.
105 In considering whether to exercise the discretion to reopen, consideration should be given to the strong public interest in sentences which are correct in law being imposed, to the time the application is made, whether there has been delay, what of relevance and importance has happened in the intervening period and whether a sentence may be spent or the people affected may have altered their position on the faith of what was done: R v Denning.
106 The definition of "penalty" which the section itself provides is to be read as widely as possible to include any necessary part of the sentence imposed. It includes the non-parole period: R v Petrou.
107 Where a court is satisfied of the existence of either condition precedent and that the court should reopen the proceedings, it has a wide discretion in deciding what if any penalty should be imposed, save that it must be in accordance with the law. The judge in re-sentencing applies the law which existed at the time the original sentence was imposed and takes into account the circumstances of the offence or offences and the position at the time of the imposition of the original penalty. The judge must consider what has happened since that penalty was imposed and the circumstances which then exist. The court is not limited to the position as at the imposition of the original penalty: R v Denning (NSWCCA per Smart J, unreported, 15 May 1992); approved R v Tangen per Badgery-Parker J (with whom Gleeson CJ and Hidden JJ agreed), not following the more restrictive views of s 24 expressed by Kirby P and by Hunt CJ at CL in Ho and Tolmie respectively.
108 The power has been held to be available to reopen a sentence to make a subsequent term of imprisonment cumulative upon, or partly cumulative upon and partly concurrent with, the original term so that a further non- parole period may be imposed: R v Petrou; to reopen to correct a penalty which was contrary to law by reason of misinformation given to the judge about the determinate sentences currently being served by the offender: R v Denning (NSWCCA, Carruthers, Smart and Grove JJ, unreported, 15 May 1992, BC9203052) per Smart and Grove JJ although each would have imposed a different sentence to the trial judge; Carruthers J would have quashed the decision to re-sentence for discretionary reasons, principally delay; and to reopen to impose a sentence which extended the period of time the offender would spend in prison and which complied with s 9(3) of the Sentencing Act: R v Tangen.
109 This discussion of the principles applying to the s 43 power to reopen emphasise the breadth of the material to which the Court can have regard in considering an application to invoke the s 43 power. The Court is clearly not limited to the formal record of the sentence, but may have regard to all the circumstances relevant to the imposition of the penalty. Once it has determined the course it should pursue, then the formal record of the penalty may, if necessary, be amended.
What is the Record?
110 Notwithstanding my conclusion concerning the breadth of material to which a Court could have regard in a s 43 application, it is necessary, having regard to the claimants' submission to consider the significance of the s 51A forms and, in particular, whether they constituted the "record".
111 The question of what constitutes the "record" in a s 51A committal for sentence proceeding is capable of a simple, although unnecessarily tortuous, conclusion.
112 Section 51A of the Justices Act 1902 (NSW) pursuant to which the claimants were committed for sentence upon their plea of guilty relevantly provided:
51A Effect of plea of guilty in committal proceedings
(1) A person charged before one, or more than one, Justice with an indictable offence may, at any stage of the proceedings, plead guilty to the charge and thereupon the following provisions of this section have effect:
(a) The Justice or Justices may accept or reject the plea...
...
(c) Where the Justice or Justices accept the plea, the Justice or Justices shall thereupon commit the accused to such sittings of the Supreme Court, or the District Court as the Justice or Justices may direct to be dealt with as hereinafter in this section provided,
(d) The Judge of the Supreme Court or of the District Court, as the case may be, before whom the accused is brought in accordance with this section:
(i) ....
(ii) ... has the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he or she would have had if the accused on arraignment at any sittings of the Court had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Director of Public Prosecutions,
...
(2) All proceedings relating to a committal for trial apply, as nearly as may be, to a committal under paragraph (c) of subsection (1).
(5) A committal under paragraph (c) of subsection (1) shall, for all purposes relating to the venue or change of venue of proceedings consequent on that committal, be deemed to be a committal for trial.
...
(7) A person sentenced or otherwise dealt with under subparagraph (ii) of paragraph (d) of subsection (1) for an offence to which he or she pleaded guilty pursuant to that subsection shall, for the purposes of any Act passed either before or after the commencement of section 2 of the Justices (Amendment) Act 1958, be deemed to be convicted on indictment of the offence.
113 The effect of s 51A(1)(d)(ii) was considered by Street CJ (with whom Lee and Enderby JJ agreed) in R v Parker (1985) 1 NSWLR 167 at 171. His Honour concluded that the "plain legislative intention of the provisions of s 51A is towards equating, so far as, inter alia, sentencing is concerned, proceedings under that section to proceedings in which there has been a verdict of guilty on an indictment". In reaching that conclusion, his Honour took into account the fact that the "remedial legislative scheme of s 51A is directed to enabling an indictable matter to be brought up for sentence without going through formal committal proceedings in a case in which the accused has made an election to plead guilty." Thus Street CJ construed s 51A(1)(d)(ii) as being sufficient to bring into effect the terms of s 45A(3) of the Poisons Act 1966 which provided a particular penalty for "a person convicted on indictment of an offence to which this section applies." It is apparent that s 51A was amended after R v Parker by the insertion of subsection (7).
114 His Honour also observed "the s 51A procedure does not involve an actual documentary indictment coming into existence." It is clear that the s 51A form took the place of the indictment for the purposes of a s 51A plea.
115 Part 53 of the District Court Rules 1973 deals with "Criminal Procedure". Part 53 r 12 provides:
53.12 Recording of orders etc
Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgement, order, sentence, direction or recommendation.
116 In my view, the effect of s 51A and Part 53 r 12 is that the s 51A form is assimilated to the indictment so that, once the sentence is recorded on it, it becomes the record of the sentence. This is consistent with the approach this Court took in R v CJP [2003] NSWCCA 187.
Consideration
117 Subject to one matter, nothing that happened in the Court of Criminal Appeal in Mr Virgin's sentence appeal inhibits this Court's consideration of his application.
118 The matter to which I refer is that it is urged on behalf of the claimants that the second opponent ought not be able to rely upon s 43 in this application because, in Mr Virgin's sentence appeal, the Crown conceded that s 43 of the Crimes (Sentencing Procedure) Act 1999 was not available to Taylor DCJ "to enliven a jurisdiction in his Honour's Court to take a step by way of clarification of his sentence."
119 Taken at face value, that was an accurate concession about the nature of the s 43 power. That power exists either to enable the imposition of a penalty in accordance with law or the amendment of a conviction or order. It does not, in terms, provide for "clarification" of a penalty.
120 On this view, the Crown's concession in the Court of Criminal Appeal was not inappropriate - it was legally correct, so far as it went. However, the Crown Advocate has presented the case on the basis that he needs to persuade this Court to consider the s 43 aspect of the matter despite the concession in the Court of Criminal Appeal. I will therefore consider the Crown's submissions in this respect. I also note that although the concession was only made in Mr Virgin's sentence appeal, the Crown did not seek to differentiate between the claimants' positions in relation to the concession.
121 The Crown submitted that the concession was erroneous and that the Crown should not be debarred from taking a different stance in this Court referring to R v Allpass (1993) 72 A Crim R 561 at 564-565 as applied in Director of Public Prosecutions v Waack [2001] VSCA 108; (2001) 3 VR 194 at [30]- [31].
122 In R v Allpass (1993) 72 A Crim R 561 at 565 the Court of Criminal Appeal (Gleeson CJ, Hunt CJ at CL and McInerney J) held that, on appeal, the Crown is not debarred from taking a different stance from that taken at first instance, but the court in the exercise of its discretion is entitled to take into account the fact that the Crown had acquiesced in the course that was taken by the sentencing judge. It said that the weight to be given to the fact that the Crown had acquiesced in the course that was taken by the sentencing judge depended upon the circumstances of the particular case and may also vary with the degree to which the appellate court thought the sentencing judge fell into error.
123 In Director of Public Prosecutions v Waack at [31], Phillips JA (with whom Batt and Chernov JJA agreed) said that Allpass should be regarded as providing the guiding principle and regarded it as applying so that even "a concession made by prosecuting counsel, if inappropriate, will not be necessarily fatal to an appeal by the director."
124 This is not an appeal against sentence. The concession has not had any operative effect in terms of the sentence imposed on the claimants - but even in those circumstances as Allpass and Waack makes clear, an inappropriate concession by the Crown does not prevent a contrary position being taken on appeal.
125 The legal concession the Crown made in the Court of Criminal Appeal did not affect its attitude to the proper sentence. It took the same stance there as it does before this Court, namely that Mr Virgin's non-parole period was three years.
126 I do not accept Mr Basten QC's submission that the Crown conceded before the Court of Criminal Appeal in Mr Virgin's matter that the s 43 application was misconceived. The concession made was that s 43 was not available to issue a "clarification" of a sentence. That, as I have already pointed out, was legally correct. It did not constitute a concession that the circumstances of these sentences did not fall within s 43(1).
127 The claimants seek to attract the Court's discretion to grant declaratory relief in an area, the administration of criminal justice, where the interests of the individual and the community intersect acutely. The community's concern in ensuring proper sentences has been given legislative recognition in the procedures available pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. This Court would be shutting its eyes to that significant demonstration of legislative intention if it viewed the Crown's concession in the Court of Criminal Appeal as preventing the Crown from advancing submissions concerning the implications of s 43 on an application for discretionary declaratory relief.
128 In my view the Court should approach the matter on the basis of considering the implications of s 43 of the Crimes (Sentencing Procedure) Act 1999 in relation to the relief the claimants seek.
129 I have concluded that the "record" for the purposes of a sentence imposed in a s 51A matter is the sentence recorded on the s 51A form. I do not, however, accept the claimants' submission that the only "record" to which regard should be had for the purpose of considering their applications is the s 51A form. Such a submission in an application for declaratory relief smacks of the "formalism triumphant" which used to plague the area of certiorari: see R v Knightsbridge Crown Court; ex parte International Sporting Club (London) Limited [1986] 1 QB 304 at 314.
130 In this respect it might be noted that, absent the s 43 power to reopen, a Court would in most circumstances be functus officio and appellate or perhaps prerogative relief would need to be sought to cure any defect in the sentence: R v Denning (per Grove J).
131 Had the application been for prerogative relief, this Court would have been entitled to have regard to the reasons for sentence: s 69(4) Supreme Court Act 1970 (NSW). Section 69 was amended by the insertion of subsection (4) to reverse the effect of the decision in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 of which this Court despaired in Kriticos v State of New South Wales (1996) 40 NSWLR 297; see also "Certiorari and Error on the Face of the Record", J W Shaw QC MLC and F J Gwynne, (1997) 71 ALJ 356.
132 It would be absurd to regard the materials to which the Court could have regard for the purposes of considering an application for declaratory relief as more limited than those to which it could have regard on an application for certiorari.
133 I turn then to consider the evidence concerning the sentence imposed on 28 November 2001.
134 There are anomalies and discrepancies both in Taylor DCJ's sentencing remarks and the recording of the sentence on the s 51A forms.
135 In order to understand the first anomaly in the sentence, it is necessary to understand the expression "head sentence". It is not defined in the Crimes (Sentencing Procedure) Act 1999 (NSW) or, according to counsel, in any other relevant legislation. The Crown Advocate submitted that the expression was common usage to refer to the whole sentence which a judge imposes. Mr Basten QC said the expression had no overall usage and was a colloquialism. He acknowledged that the expression used to refer to the full sentence. There is no doubt, in my view, that the Crown Advocate is correct: see Griffiths v R [1989] HCA 39; (1989) 167 CLR 372.
136 Once the expression "head sentence" is understood, it is apparent that, taken literally, Taylor DCJ imposed two head sentences, one of four years and four months, the other of three years. The second anomaly is that, again taken literally, he has also imposed two non-parole periods, one of three years expiring on 1 May 2004, and one of one year and four months.
137 Bearing in mind his Honour's starting position was that each claimant should be sentenced to five years, but have a reduction of eight months from the head sentence because of his plea of guilty, the only reasonable interpretation of the head sentence his Honour intended to impose was that it was the term of four years four months imprisonment.
138 As to the non-parole period looking at the sentence alone, the more probable interpretation is that Taylor DCJ imposed a non-parole period of three years. That would be consistent with the claimants being eligible for release on 1 May 2004. It would also be consistent with his Honour's reference to three years next after the reference to four years four months, being the order in which s 44 (1) of the Crimes (Sentencing Procedure) Act 1999 required him first to set the term of the sentence and then to set the non-parole period.
139 The alternative interpretation for which the claimants contend is that the non-parole period was one year four months, picking up his Honour's express statement to that effect. In my view the sentence is not open to that interpretation, having regard to the powerful indicia to the contrary to which I have referred.
140 When one turns to the s 51A forms, the following anomalies and discrepancies appear:
(a) There are two head sentences recorded: four years four months and three years;
(b) The phrase "comprising a head sentence of three years with a reduction of eight months from the head sentence due to special circumstances" does not record what his Honour said in relation either to the head sentence of three years or the reduction of eight months for the plea of guilty which was deducted from the original five year sentence;
(b) the words "expiring on 1/9/02" were not made by his Honour's when imposing the sentence. If the s 51A form is regarded as having been altered before his Honour signed it, then his statement that the claimants would be eligible for consideration for release on 1 May 2004 has not been recorded on it.
141 There is no doubt that Taylor DCJ's remarks on sentence were confusing. It is clear, however, that his Honour was seeking to give effect to ss 44, 47 and 48 of the Crimes (Sentencing Procedure) Act 1999. Thus, he first set the term of the sentence, four years four months, next set the non-parole period for the sentence, three years and specified why it was less than three quarters of the term of the sentence, and provided information as to the earliest date on which the claimants would be eligible for release on parole - 1 May 2004. Within that sentence, however, there are two anomalies: first, the term of three years imprisonment was described as a "head sentence" and secondly, the period of one year and four months was described as a "non-parole period". As the Crown has submitted, if those statements were taken literally, then Taylor DCJ imposed two head sentences and two non-parole periods. That is clearly contrary to law.
142 It is clear his Honour was not intending to impose a three year head sentence. Had he been doing so he would have been required to make an order directing the release of the claimants at the end of the non-parole period: s 50 Crimes (Sentencing Procedure) Act 1999. The words "three years" were intended to perform another function - as is now clearly apparent they were intended to refer to the non-parole period.
143 The s 51A forms do not significantly improve the position. The s 51A forms record two head sentences, inappropriately apply the reduction of eight months for the plea of guilty and record a non-parole period, but, as amended, do not record the date of eligibility for release pronounced by his Honour of 1 May 2004.
144 Mr Basten QC's submission that this Court could disregard the discrepancy constituted by the recording on the s 51A form of "comprising a head sentence of three years with a reduction of eight months from the head sentence due to special circumstances" should not be accepted. The claimants cannot pick and choose whatever aspects of the s 51A forms assist their case. The inclusion of those words on the s 51A form demonstrates the confusion under which their author was operating, induced no doubt by the manner in which the sentence was expressed. Taken in the context of the whole form, they undermine any confidence the Court could have, even if there was no other evidence, that the s 51A form recorded the sentence Taylor DCJ had imposed.
145 The subsequent events are open to two interpretations.
146 The first is that on 19 December 2002 Taylor DCJ did exercise his power under s 43 of the Crimes (Sentencing Procedure) Act 1999, reopen the sentence and amend the claimants' convictions to give effect to his original intention that the non-parole period in relation to each claimant be three years. As I have noted, the claimants' then solicitor (now only acting for Mr Erceg) interpreted the events of that day as his Honour having imposed a three year non-parole period.
147 Such an interpretation of the events of 19 December 2002 is also consistent with the fact that the claimants' then solicitor arranged for the proceedings to be brought before Taylor DCJ pursuant to s 43. The reference to an "amended sentence" indicates an exercise of the s 43(2)(b) power.
148 The discussion of the authorities, which I have set out above, makes it clear that it would have been open to him to give effect to his original intention pursuant to s 43.
149 The formal difficulty with interpreting the events of 19 December 2002 in that manner is that his Honour neither stated that he was reopening the proceedings in relation to each claimant or stated that he was either imposing a penalty in accordance with the law (s 43(2)(a)) or amending the claimants' sentences (s 43(2)(b)).
150 There is no doubt that, as the Crown Advocate acknowledged, there has been "a series of very serious inappropriate errors". I do not accept Mr Basten QC's submission, however, that there has been "inaction and apparent maladministration...to achieve a goal not justified by the Court order." Rather there has been a series of attempts, most probably misguided, to seek to give effect to the original sentences.
151 This Court, in entertaining an application for a declaration, must have regard to all the facts. It must also consider the public interest in sentences which are correct in law being imposed. That public interest is reflected in s 43 of the Crimes (Sentencing Procedure) Act 1999. Once it is appreciated that that section is available to require a Court to reopen a sentence once s 43(1) is satisfied and that upon the reopening the intervening circumstances must be considered, the force of Mr Basten QC's submissions concerning the passage of time is diminished.
152 In my view Taylor DCJ imposed a head sentence of four years four months with a non-parole period of three years. Taken literally, however, the sentences his Honour imposed were either contrary to law as the Crown submits or failed to impose a penalty as required by law because of the internal inconsistencies and discrepancies to which I have referred.
153 Further, the sentence as "recorded" as opposed to "imposed" in the s 51A form requires amendment - a course s 43(2)(b) clearly contemplates.
154 In my view the matter should be placed before Taylor DCJ. At any such hearing his Honour should be fully apprised of the facts and the principles attending a s 43 application and the events which have happened since 28 November 2001. Once he has dealt with the matter, his decision should be given effect in the formal records of the District Court.
155 The fact that the s 43 route is available strongly militates against the grant of discretionary declaratory relief - a remedy which is only available in criminal proceedings in exceptional cases.
Is Declaratory Relief Appropriate?
156 There is no doubt this court can entertain an application for declaratory relief even in relation to criminal proceedings: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 20 per Gibbs A.C.J., at 79 per Stephen J and at 81 per Mason J. Courts have, however, been reluctant to make declarations in relation to criminal proceedings to avoid the danger of fragmenting the proceedings, by prolonging them and thus delaying the efficiency of the criminal process: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 26 per Gibbs A.C.J.
157 In Shapowloff v Dunn [1973] 2 NSWLR 468 at 470 Jacobs P said:
"...it must be borne in mind that any court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter."
158 Jacobs P's reluctance to exercise the declaratory jurisdiction stemmed both from the availability of alternative forums in which the point sought to be made the subject of the declaration could be raised, both at first instance and in due course on appeal, as well as from the general undesirability of a court exercising declaratory jurisdiction in a criminal matter.
159 These remarks are directed to the exercise of the supervisory jurisdiction by way of declaration before the criminal proceedings are concluded. There is clearly a public interest in ensuring the efficient disposition of criminal proceedings which would be frustrated if the jurisdiction to grant declaratory relief before the proceedings were concluded was readily exercised. In such cases, as Gibbs A.C.J. made plain in Sankey v Whitlam at 25, the circumstances would have to be "most exceptional to warrant the grant of relief"; see also Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235 per Kirby P.
160 These observations are clearly not as apposite once the criminal process has concluded. Even then, however, proceedings for review of a sentence have a well-defined route: either on appeal or, where appropriate, for reopening pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. Although s 43 does not preclude the Court from granting a declaration (compare Dorney v Federal Commissioner of Taxation [1980] 1 NSWLR 404 at 408 per Hutley JA), the availability of a statutory remedy from the sentencing judge is a powerful factor militating against this Court exercising its discretion to grant declarations.
161 Further, in my view, the evidence does not demonstrate that the factual basis for the declaration sought exists. The evidence the claimants themselves tendered which including the remarks on sentence, the s 51A forms and the Amended Sentence, all demonstrate to my satisfaction that the non-parole period Taylor DCJ intended to impose was three years.
162 In my view it is not appropriate for the Court to grant the declarations sought.
Amending the Warrants of Commitment
163 It cannot be correct that a warrant of commitment can never be amended. As this case demonstrates, errors can be made in recording information on the warrant of commitment which can be described as pure mistakes. The best illustration of that in this case is the mistake in recording the expiry of the term of Mr Erceg's sentence. That date, at least, was clearly identified as being "1 September 2005" both in the remarks on sentence and on the s 51A form. It was erroneously recorded in the warrant of conviction as "1/5/2003" (First Erceg warrant) and "01/01/2005" (Third Erceg Warrant), before being correctly recorded in the Final Warrant.
164 It cannot be suggested that clerical errors, which a moment's thought would indicate could operate as much to the detriment of a prisoner as to his/her benefit, would not be corrected. The legislature clearly contemplated that the requirements that the warrant be issued by the Court (s 62) and that the warrant be signed by a Justice of the Peace would operate as a safeguard against mischievous alterations.
165 Some of the amendments to the claimants' warrants of commitment appear to go beyond attempts to correct clerical errors. They appear to reflect attempts to interpret the original sentence, most probably undertaken in consequence of the correspondence to which I have referred. As such, these amendments appear highly inappropriate, not least because, to the extent they appear to amend the claimants' sentences, they breach the principle that a sentence must be pronounced in the presence of the accused: Lawrence v The King [1933] AC 699.
166 However, the exercise this Court was asked to embark upon was to identify the sentence imposed on each claimant. The warrants were not the "sentence". The debate about the warrants should not be permitted to obscure the true controversy in this case. The warrants of commitment flow from the sentence. They are clearly an important document, but the resolution of the issues in this case does not turn upon their terms.
167 The circumstances in which the District Court and a Justice of the Peace amended the warrants of commitment do raise concerns. I agree with Sheller JA that the Director of Public Prosecutions should be asked to investigate the matter. The Director of Public Prosecutions should also bring this judgment to the attention of the Chief Judge of the District Court to take such steps as he thinks appropriate.
Law Reform
168 In 1985, in R v Parker, Street CJ observed that the s 51A procedure did not "involve an actual documentary indictment coming into existence."
169 Despite the amendment to s 51A consequent upon R v Parker by the insertion of subsection (7), his Honour's remarks do not appear to have been reflected by the prescription of any form for the purposes of a s 51A committal.
170 The Justices Act 1902 (NSW) was repealed by the Justices Legislation Repeal and Amendment Act 2001 with effect from 7 July 2003. The committal for sentence procedure is now found in Division 5, Part 2, Chapter 3 of the Criminal Procedure Act 1986 (NSW). Section 111(1) provides that the Registrar must give the appropriate officer of the Court to which an accused person has been committed for sentence "the documents required by the rules." Clause 16 of the Local Courts (Criminal and Applications Procedure) Rule 2003 identifies the documents required to be forwarded pursuant to s 111(1). The documents do not include any document which would perform the function of the s 51A form.
171 Division 2 of Part 3 of the Criminal Procedure Act 1986 sets out detailed provisions concerning the presentation of the indictment upon the committal of an accused person for trial. It does not extend to a committal for sentence.
172 It would be highly desirable if the Criminal Procedure Act 1986 was amended to give statutory recognition to the document upon which the sentence pronounced in committal for sentence procedures can be recorded to ensure there can be no further controversy about what constitutes the record in such matters.
173 Finally I note that the prescribed form for the warrant of commitment contains the words:
"To the Governor of the Correctional Centre at....in the State of New South Wales".
Those words, at least, appear in terms on the various warrants which were issued. Section 62(3)(a) makes it clear that the legislature intended that the Correctional Centre to which the offender was to be committed was to be inserted between the words "at" and "in" in the direction to the Governor, but the printed form used does not provide sufficient space to accommodate inserting that name. That should be remedied.
Conclusion
174 What I have said should not be taken to inhibit Taylor DCJ's exercise of his discretion pursuant to s 43(2) of the Crimes (Sentencing Procedure) Act 1999. In particular, as the discussion of the principles of reopening a sentence which I have set out earlier in this judgment make clear, when reopening a sentence pursuant to s 43 the Court must take into consideration what has transpired since the penalty was first imposed and the circumstances which exist at the time of exercise of the powers.
175 In my view both summonses should be dismissed.
176 It would not be appropriate, however, to order the claimants to bear the costs of the applications. The Crown should have drawn Taylor DCJ's attention to the anomalies in the sentences he originally imposed. While the claimants were equally interested in the matter, it is the Crown's duty to assist the court in the task of passing sentence: R v Tait (1979) 24 ALR 473; 46 FLR 386. It was also incumbent upon the Crown to ensure that Taylor DCJ's attention was drawn to the precise exercise he was being asked to undertake pursuant to s 43 in December 2002.
177 I propose the following orders:
1. Summons dismissed.
2. Second Opponent to pay the claimants' costs.
178 PALMER J: I have had the benefit of reading in draft the reasons for judgment of McColl JA. I agree with her Honour that the Summonses should be dismissed, substantially for the reasons which her Honour has given. I would add the following comments.
179 This Court is asked to make declarations as to the validity of the warrants for committal in respect of the claimants issued by the District Court on 28 November 2001. In other words, what is sought is a determination whether the warrants are good in law or bad in law for all relevant purposes. In making that determination the Court cannot be confined simply to comparing the terms of the warrants with the terms of the purported "record" of the claimants' sentences because the "record" in itself may be defective on its face to the extent that it would be quashed if called up for review under s.69 Supreme Court Act 1970 (NSW) or would otherwise be liable to correction, for example, pursuant to a reopening of the proceedings under s.43 Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act").
180 In short, if this Court is to exercise its discretion whether or not to make a general declaration as to the validity of the warrants, it must have regard to all of the facts and circumstances which may affect that validity so that it may assess, amongst other things, the utility of making the declarations sought. One of the matters which the Court must examine in the present case is whether or not the record of the claimants' sentences correctly records the sentences pronounced. If it does not, the Court must then consider what steps, if any, may be taken to correct the record. If the record is readily open to correction, then comparison of its present terms with the terms of the warrants may be pointless, so that the declarations sought would be futile.
181 As Sheller JA has pointed out (see [3] above):
Internally the sentences as pronounced in the remarks on sentence were contradictory and therefore meaningless unless read down.
Accordingly, to ascertain whether the record correctly embodies the sentence pronounced by the judge, it is necessary to give meaning to the judge's remarks on sentence by engaging in an exercise of interpretation.
182 On a reading of the sentencing remarks as a whole and in context, I think that it is clear that the sentence passed on each claimant was a sentence of imprisonment for four years and four months, commencing on 2 May 2001 and expiring on 1 September 2005 and comprising a non-parole period of three years' imprisonment and a parole period of one year and four months. This is apparent from his Honour's statement that each claimant would be eligible for consideration for parole on 1 May 2004, which is three years from the specified commencement day of the sentence. For some inexplicable reason, in sentencing each of the claimants his Honour said "head sentence" when he meant "non parole period" and "non parole period" when he meant "parole period". If these substitutions are made, his Honour's sentencing remarks make perfect sense.
183 Accordingly, in my opinion, the record of the claimants' sentences constituted by the writing on the s.51A forms, in so far as it states that that non-parole period is one year and four months, does not correctly record the sentences pronounced, on their proper construction.
184 Nevertheless, Mr Basten QC, who appears for Mr Erceg, submits that the sentences have been perfected by the judge's signature on the s.51A forms so that no court can now go behind that record in order to see whether what is contained therein accurately expresses the intention of the sentencing judge. The "slip rule" does not apply to perfected orders, he says, and a court has no inherent jurisdiction to correct a perfected order in criminal proceedings. The only way in which an error in a perfected order may be corrected, he submits, is by means of an appeal to the Court of Criminal Appeal.
185 It is not necessary in this case to decide the vexed question whether a perfected order in criminal proceedings is amenable to the slip rule or may be corrected pursuant to the inherent jurisdiction of a superior court whose jurisdiction is derived from the royal prerogative or pursuant to the necessarily incidental jurisdiction conferred on a statutorily created court: see DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, at 240-1; Grassby v R [1989] HCA 45; (1989) 87 ALR 618, at 627-9; R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29 [31]-[33]. This is because the discrepancy between the sentences imposed on the claimants by the judge, properly understood, and the terms in which those sentences were expressed on the record can easily be remedied by recourse to s.43 CSP Act.
186 I agree with McColl JA that the judge, in sentencing remarks, has imposed on each claimant a penalty that is "contrary to law", within the meaning and scope of s.43(1)(a) CSP Act. I say this not because the penalty imposed, properly construed, was for a term of years or for a non-parole period which was contrary to law but because, contrary to law, the penalty imposed was not capable of ascertainment from the remarks of the sentencing judge without engaging upon a contentious exercise of interpretation. In my view, the law requires a penalty of imprisonment to be imposed in terms which are clear and able to be understood both by the offender and by those responsible for administering the penalty. This requirement is embodied, for example, in s.48(1) of the CSP Act, which provides that a court, when sentencing an offender to imprisonment, must specify the day on which the sentence commences and the earliest upon which the offender will be entitled to release or eligible for release on parole.
187 In the present case, the terms in which the sentence was imposed on each claimant left it to those administering the sentence to choose which of two inconsistent parts of the sentencing remarks would be carried out. They could choose to carry out that part which expressly conforms to the requirements of s.48(1), namely, that part which specifies the day on which the sentence commences (2 May 2001) and the earliest day on which the claimant will become eligible to be released on parole (1 May 2004). On the other hand, those administering the sentence could choose to carry out that part of the sentencing remarks which does not comply with the requirements of s.48(1), namely, that part which states that the non-parole period is for one year and four months without specifying the day upon which the claimant will become eligible for parole.
188 As a matter of first principle, it cannot be in accordance with the law that those administering a sentence of imprisonment can be left to choose which of two inconsistent parts of the sentencing remarks will be carried into execution.
189 For these reasons, I am of the view that the District Court has jurisdiction under s.43(1)(a) CSP Act to re-open the proceedings against the claimants in order to impose a penalty that is in accordance with the law. As the penalty imposed by Taylor DCJ was contrary to law only because of the impermissible manner in which the penalty was expressed by the judge, I am of the view that in the extraordinary, not to say bizarre, circumstances of this case it could be open to the court, in the exercise of the discretion which it undoubtedly has under s.43(2), to correct the judge's sentencing error merely by reimposing upon each claimant in clear and unambiguous terms and in accordance with s.48 of the CSP Act the penalty which Taylor DCJ intended to impose on 28 November 2001. As I have noted, that penalty was a sentence of imprisonment for four years and four months, commencing on 2 May 2001 and expiring on 1 September 2005 and comprising a non-parole period of three years imprisonment and a parole period of one year and four months, the earliest day upon which each claimant would be eligible for consideration for parole being 1 May 2004. The court could then amend the record of the original orders made so as to reflect the penalty reimposed under s.43.
190 However, what I have said should not be construed as intended to fetter the wide discretion which the court has in deciding what penalty to impose under s.43(2). I agree with what McColl JA has written in this regard. I mention the possibility that the judge exercising the discretion under s.43(2) might impose the same sentence as Taylor DCJ intended to impose only to illustrate that it would be presumptuous to assume at this stage that the claimants are already suffering an unjust and unlawful detention in prison.
191 In the exercise of this court's discretion, therefore, I would decline to make declarations as sought in paragraph 1 of the Summonses because:
- the warrants are founded upon a record of the sentences passed which is shown to be incorrect;
- the record of the orders may easily be corrected upon a re-opening of the proceedings under s.43 CSP Act either upon application by the Crown or by the District Court of its own initiative, in accordance with s.43(2);
- it is reasonably to be expected that the proceedings will be re-opened very shortly upon an application to be made by the Crown with the utmost expedition or, failing such an application, by the District Court on its own initiative;
- in these circumstances it would be futile to make declarations as to the validity of the warrants when the record upon which they are founded may be corrected or new sentences may be imposed which make the present warrants irrelevant;
- it would be contrary to the public interest and contrary to the interests of the due administration of justice to make declarations as to the validity of the warrants founded upon an incorrect record of the sentences, thereby procuring the release of the claimants on parole one year and eight months earlier than the sentences, properly construed, permitted.
192 For the same reasons I would decline to make the declarations sought in paragraphs 2 and 3 of Mr Erceg's Summons and in paragraph 2 of Mr Virgin's Summons.
193 In his written submissions, Mr Basten QC sought a declaration in lieu of that in paragraph 1 of Mr Erceg's Summons as follows:
A declaration that, pursuant to the order of the first opponent made on
28 November 2001, the claimant was subject to a non parole period of one year and four months which expired on 1 September 2002.
194 For the reasons I have given, in the exercise of the Court's discretion I would decline to make that declaration, or indeed any declaration as to the validity or effect of the orders of Taylor DCJ as recorded on the 51A forms signed by the judge on 28 November 2001.
195 I agree with the orders proposed by McColl JA.
LAST UPDATED: 22/12/2003
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